In California death penalty case Jones v. Davis, several troubling issues arose. The petitioner at the habeas corpus hearing in district court alleged the California legal system excessively delayed death penalty convictions violating the 8th Amendment prohibiting cruel and unusual punishment. Despite the prior California Supreme Court ruling to the contrary on appeal, the district court judge ignored the merits of the petition and expressed his concern the California death penalty was unconstitutional on a different ground. He allowed petitioner four days to file an amended petition to assert a “new claim” of systemic dysfunction of the state court. The petitioner complied.
After a hearing on the amended petition, the district court judge found the California death penalty post conviction process unconstitutional on 8th Amendment grounds. The court cited no precedent, including 9th Circuit decisions having been overruled by the Supreme Court in almost every death penalty case in the last decade. The conduct of the district court, ignoring the death penalty issue written by the petitioner in the original petition, and requesting an amended petition on other grounds he suggested, is a serious question. In effect, the court ordered petitioner to file a claim of unconstitutional conduct by California courts without citing any judicial precedent or statute for systemic dysfunction and in conflict with Supreme Court decisions. Nothing more than a personal opinion, not legally sanctioned. The state appealed to the 9th Circuit.
The 9th Circuit panel wrote they were compelled to grant the appeal by the State of California, and reversing the district court order granting habeas corpus, on grounds the Supreme Court had previously filed a case prohibiting appellate courts from writing a “new rule” on habeas corpus appeals. Rarely has the 9th Circuit followed this rule over the years but the significance of the Jones case probably affected the court worrying about certiorari to the Supreme Court. The Justices have repeatedly denied 8th Amendment claims the death penalty qualifies as “cruel and unusual punishment.”
The second troubling issue arises from footnote 2 of the panel opinion suggesting petitioner seek review of the claim elsewhere as asserted in his own petition or the amended petition recommended by the district court. The options included the state court. Yet the panel opinion, after extensively discussing its inability to write a new rule on habeas petitions, and having contended to rule otherwise would more cause more delay, nevertheless suggests petitioner try “other means” in the footnote. This interpretation implies either the petitioner return to the California Supreme Court for reconsideration on the issue of systemic dysfunction, or citizens file an Initiative.
The panel could have foreclosed petitioner from proceeding in federal court by citing the federal Anti Terrorism and Effective Death Penalty Act (AEDPA) requiring state prisoners to exhaust all post conviction claims in state court before filing habeas in federal court. The petitioner had not complied with the statute in district court, and never cited AEDPA to the panel. In fact, petitioner conceded he did not file either the original or amended petition in state court mandated by the exhaustion rule. The panel circumvented this issue having decided petitioner had sought a “new rule” held by the Supreme Court. By suggesting petitioner could continue his quest for challenges to the death penalty, he could conceivably go back to state court and exhaust all his claims as required by law and, if the claims were denied, come back to the district court. This incongruous recommendation defies understanding.
Undoubtedly petitioner will seek certiorari in the Supreme Court, surprising the Justices that the 9th Circuit had denied a petition for habeas corpus in a death penalty case. Absent a rehearing, the 2-1 majority in the 9th Circuit opinion will survive in Washington.
The Jones case is obviously not the first constitutional challenge to the death penalty per se on grounds of cruel and unusual punishment and despite repeated denial by the Supreme Court, but the decision does expose the California state government to criticism for its indolence, in part because the Governor, Attorney General and the Legislature will do nothing to clarify or restructure the legal system. The Governor has ignored any congestion in post conviction proceedings and merely cut the judicial budget. The Attorney General personally opposes the death penalty and is busy with the important alternative of child truancy and abandoning her promise to serve as Attorney General for four more years. The Legislature has not held a committee hearing to review post conviction remedies, and refused to adequately fund the lawyers who write habeas corpus briefs and those who do appellate work in death penalty cases.
The state government is not alone. The federal government enacted legislation in 1996 to cabin the role of federal courts, particularly the 9th Circuit, in the AEDPA. The statute, repeatedly evaded by the 9th Circuit whose panels have granted habeas corpus despite the rulings of the California Supreme Court. The latter has upheld almost all death penalty cases on overwhelming evidence and not by academic hair splitting and ineffective assistance of counsel decisions written by 9th Circuit panels. Congress should tighten AEDPA to eliminate federal rulings on state habeas as enacted in 1996.
The 9th Circuit recently requested the state supreme court to adopt a statute of limitations rule identifying the amount of time a state prisoner must file a petition for federal habeas corpus after a state judgment is affirmed. The state supreme court has not replied. The 9th Circuit justifiably warrants a “bright line” for state habeas limitation rules in order to determine its own statute of limitations filings in federal courts.
California law allows petitioner to file habeas three times independently in state court: the Superior Court; the Court of Appeal; the California Supreme Court. Assuming all these courts deny the petition, a petitioner can then seek certiorari in the Supreme Court. If denied, then file in the district court; if denied; appeal in the 9th Circuit; if denied, back
to the Supreme Court.
All these California laws can be changed. There is no need for the state supreme court to hear habeas corpus on the same ground it just rejected in direct appeal. The state Attorney General, who represents the state, endorses all these identical options to assure a defendant convicted by a unanimous jury, a motion for new trial denied, and an automatic appeal to the California Supreme Court alleging violation of Constitutional rights, are protected. These endless appeals are unnecessary.
Habeas petitioners invoke two jurisdictions. The claims are identical and in some cases the federal court must return the case to the state court to exhaust local claims. After the state court rules, the petitioner files an amended petition in federal court. Two jurisdictions on the same case causing incessant delay.The amended petition in Jones complained about systemic delay in his case, and the judge ruled on his own policy. But not a word in his opinion about the 9th Circuit who have overruled the California Supreme Court in almost every death penalty case during the last decade. On policy, masked in judicial rhetoric.
Lawrence Waddington is a retired judge of the Los Angeles Superior Court and author of recently published “Disorder in the Court” at Amazon.com. He also edits the 9th Circuit blog titled “-The 9the Circuit Watch.”